Request denied

ByHiller B. ZobelDecember 18, 1985

IT was a reasonable request: Would the judge please let the reporter have the names, addresses, and telephone numbers of the murder-trial jurors? Considerable local attention had focused on the case; the jurors were performing public service; the information was readily available; and the reporter would not approach the jurors until after the verdict. Further, the process by which 12 strangers reached unanimity was central to the administration of justice.

In short, the reporter emphasized, he was only going to help clear up a sociological mystery.

``The individual jurors' information sheets are confidential,'' the judge said. ``But the master rolls, carrying the jurors' names and home addresses, are public records. You can take down the names as the jurors first go into the jury box; then you can get the information from the master rolls.''

``That wouldn't help,'' the reporter answered. ``Even if I'm in the courtroom, the names go so fast, and so many of them don't spell the way they sound that I can never get an accurate list. Anyway, it takes too long to check the rolls and look up numbers in the telephone book. Time is crucial to us; can't you help me out?''

Remembering that news-freshness is a First Amendment right, the judge paused. News people, he thought, always insist (and rightly so) that the press should not act as an arm of government. Now a reporter was asking a judge to do his legwork? Irony apart, the judge faced serious problems.

One advantage of the jury-trial system has always been the participation by a portion of the community in the administration of justice. Because the jury personifies the public, sitting jurors lose their separate identities. Their word is the community's voice, their muteness the community's silence.

In the centuries-old ritual that starts a Massachusetts criminal trial, the clerk or court tells the jurors: ``If [the defendant] is guilty, you will say so; if [the defendant] is not guilty, you will say so. And no more.''

A jury gives no reasons for its decision; it reaches a collective result, announced by the foreperson. When the clerk asks, ``So say you all?'' the mumble of ``Yes'' is the only time the jurors talk; their verdict speaks for them.

Immediately afterward, the judge addresses the jury for the last time: ``You are now discharged, with the thanks of the court.'' Thus the jury as a unit dissolves forever, its members now again individuals.

Society has good reason to refrain from poking into a jury verdict. For one thing, people cannot always articulate particular conclusions. Second, society needs to bring matters to an end. It is one thing to say that the conduct of a trial should be subject to full appellate review, or that an attempt to influence or corrupt jurors should be openly explored, or even that a conviction patently against the evidence should be set aside. It is quite something else to say that the jury's deliberations should

be open to scrutiny.

Moreover, jurors are compelled to perform a difficult and frequently distasteful public service. Indeed, in Massachusetts, which permits courtroom news photography and television, a ground rule prohibits any recognizable depiction of a juror. In the six-plus years since the cameras have entered the courtroom, no juror has protested the rule.

If jurors knew they would have to answer for their deliberations, the number of people willing to serve would diminish sharply, and the discussions of those who did serve would necessarily suffer an unhealthy restriction.

Beyond all this lies a deeper truth. The jury, especially in criminal cases, sits as the community's conscience. Judges and lawyers -- and wiser thinkers, too, -- understand that sometimes a jury will acquit in the face of clear evidence. Yes, those jurors have disregarded their oaths. But they have introduced an element of compassion, without which no system of law can operate. Jurors who had to explain verdicts might find such humane aberrancy impossible to justify.

So the judge shook his head. The reporter was free to get the information any legal way he could, but the judge, keeping faith with the jurors, would not help him.